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CIA Drone Strikes Lawful?

CIA Drone Strikes: Death Without Trialby Andy Ho of The Straits Times

SINGAPORE law permits detention without trial. The United States, however, even metes out the death penalty on and summarily executes suspected terrorists, all without trial too.

Since 2004, the US has used drones to take out some 1,800 Taleban and Al-Qaeda operatives in the Federally Administered Tribal Areas of Pakistan bordering Afghanistan.

In Wired For War (2009), Brookings Institution analyst Peter Singer details the development and deployment of drones carrying missiles and smart bombs. In contrast to traditional bombardment using jets, tanks or long-range guns, drones can surveil the target for hours, confirm that the target is on site, and then launch a missile at the command of someone far away.

With drones, the complication of having to detain captured enemy combatants disappears.Drones simply kill.

Started under former president George W. Bush, the drone programme escalated dramatically under President Barack Obama. More drone strikes were notched up in 2009, Mr Obama’s first year of office, than in all eight Bush years combined. He then doubled that pace last year.

Last year, Congressman Dennis Kucinich of Ohio argued that these drone attacks violated international law since Pakistan was not at war with the US. In 2009, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions felt that these strikes may “violate international humanitarian law and international human rights law”.

The US could simply argue that its soldiers controlling the drone are lawful combatants taking out enemy combatants in the war on terror. However, since it is individual Al-Qaeda or Taleban operatives identified by name who are targeted, these strikes are arguably launched more in a law enforcement than warfare mode.

The difference is crucial: The former is pitted against specific individuals suspected of a crime while the latter is carried out against people by virtue of their status as combatants. In warfare, combatants are lawful anonymous targets not because of some individual moral culpability they bear for their country’s failings but simply because they are not civilians.

So while the law is enforced against individuals, war is waged against (persons because of their combatant) status. However, law enforcement is predicated on due process: The individual is innocent until proven guilty in a court of law.

Without such guarantees, it is the mere rule of man, not law. This seems precisely the case with drone strikes, where the presumptive criminal is not charged or afforded the opportunity to make his own defence and have all the evidence assessed by an impartial court.

Instead, some men of high political standing presumably sift through classified intelligence and then find specific individuals guilty. A death sentence is passed and US soldiers sitting at a console dispatch a drone that can identify the criminal’s home thousands of kilometres away and then fire a missile at it.

Another fact that makes this law enforcement rather than warfare is the intimate involvement of civilian law enforcement officers. In congressional testimony last year, University of Notre Dame law professor Mary Ellen O’Connell reported a former drone commander admitting to her that US Air Force drone strikes were conducted with the close participation of the Central Intelligence Agency (CIA).

It is now known that the US has two parallel programmes, the publicly acknowledged one run by its armed forces, apparently with CIA participation, and a classified one run by the CIA, a civilian agency.

In a December 2009 New Yorker magazine report filed based on statements from the US authorities, the covert CIA drone programme was dubbed the “world’s worst kept secret”. The CIA can presumably act more urgently on the intelligence it acquires, whereas passing that on to the armed forces may degrade the data – for example, the target may move home in the interim.

Thus, some contend that US drone strikes are almost exclusively CIA-run. Others argue that drone strikes in the Afghan and Iraqi theatres are left to the military while the CIA covers geographical regions with no US military personnel on the ground – in Yemen, say.

Either way, CIA operatives (civilians) based at Langley, just outside Washington DC, may be dispatching drones at targets thousands of miles away. While the military must at least adhere to the Uniform Code for Military Justice, what rules do CIA drone strikes operate under?

For example, who can the CIA target? In 2009, the Washington Post reported a “hit list” of Afghan drug lords suspected of bank-rolling the Taleban. If these strikes are assassinations, has the CIA not broken Executive Order 12333 that specifically forbids assassinations by intelligence agencies? Can the CIA launch a drone against a high level operative it locates on an island near us? What if the strike goes awry, only to hit Singapore?

While no one should shed a tear for terrorists, the CIA’s lack of accountability is also troubling. It is high time the US revealed what rules govern its CIA programme of “death penalty by remote”. This way, at least the rest of us will know what safeguards may be in place. Or not.